Generally, the South Carolina Court of Appeals does not issue published opinions Per Curiam. Perhaps it did so for the August 10, 2011 opinion in Moeller v. Moeller, 394 S.C. 365, 714 S.E.2d 898 (Ct. App. 2011), because no judge wanted to claim authorship for what I find an inexplicable reversal on the issue of child custody.

The Court of Appeals reversed the family court’s award of custody to Father for three reasons. First, the Court of Appeals was not convinced that Mother’s adulterous conduct negatively impacted the children. The guardian ad litem hired a private investigator to develop evidence of Mother’s adultery (where did she get the funds to do this?). Both the guardian ad litem and, apparently, the family court judge who heard the case believed that Mother hid and misrepresented her relationship with her paramour, Mullinax. The Court of Appeals’ opinion notes that Mother rented a house from Mullinax and that Mullinax used that address as his address. The private investigator hired by the guardian found Mullinax’s truck parked at Mother’s house overnight on a school night (when Mother would have had the children).

In its order, the family court found that the great lengths taken by Mother to deceive the GAL, the family court, and others about her relationship with Mullinax was “troublesome not only as to her credibility but also as to her lack of judgment, lack of mature reasoning, and ability to contrive and scheme for her own purposes.” The family court expressed concern that the children were not “entirely open with the Guardian, as some of their responses appeared to have been given to protect the mother or coaxed by her.” The family court also found that Mother “knowingly placed the children in the middle of her relationship with [Mullinax] and, by doing so, acted contrary to their best interests.”

In reversing the family court, the Court of Appeal found “there was no evidence the relationship had any detrimental effect on the parties’ children” and “[e]ven if the family court’s perception of Mother’s character traits is accurate, the record does not show that these traits have substantially affected the children’s welfare.”

The guardian ad litem and the family court judge were in a much better position to assess Mother’s, the children’s and Mullinax’s credibility than the Court of Appeals. Assuming the family court judge correctly found that Mother had engaged in a scheme to deceive the guardian and the court about the nature of her relationship with Mullinax and had encouraged the children to do the same [points the Moelleropinion disputes without explanation or substantiation], a conclusion that Mother’s behavior and relationship did not have any detrimental effect on the children is incomprehensible.

The second basis for the change of custody was Father’s financial instability, which included a potential foreclosure on the marital home. The Court of Appeals reasoned:

The record reflects Father’s trouble maintaining stable employment throughout the marriage and his continued reliance on Mother to pay for most of the children’s expenses, including medical care and school expenses. Father’s inability to provide financial stability for the children is a critical factor that the family court overlooked in determining child custody.

Substitute “Husband” for “Mother” and “Wife” for “Father” in that paragraph and you describe the vast majority of traditional marriages. Does this mean that stay-at-home Mothers are too financially unstable to be awarded custody? Father implied that child support would cure his financial instability [mother had been awarded pendente lite custody]. It would be nice to know whether he was financially stable during the appeal, a time period in which Mother was paying child support. The Moelleropinion is silent on that issue.

The third reason the Court of Appeals reversed the family court was because an award of custody to Father separated the parties’ two children from their half-sibling, a child born to Mother a few years before their oldest child was born. The Court of Appeals held the family court gave too little weight to the presumption against separating siblings. However Moelleris the first time this presumption has been used for half-siblings. Extending this presumption to half-siblings creates a number of problems that Moeller seems to blissfully ignore:

If a party brings a child into a marriage, does that mean this party is automatically favored in any subsequent custody litigation involving the couple’s own children? If so, we are going to unfairly punish stepparents, who will now stand at a disadvantage in getting custody of their own children. Shouldn’t the law encourage adults to become caring stepparents rather than avoiding marriage to those who already have children?

If a child is born out of wedlock but the father already has another child and it’s the mother’s first child, does this mean he should be favored to have custody so as to avoid sibling separation?

If both parents already have children with another, how should the court decide which half-sibling relationships to preserve? Are we going to base it on which children are closest in age? The same gender? Who has more half-siblings?

Since I started this blog 2 ½ year ago, there have been a couple of published opinions I found completely misguided: Floyd v. Morgan and SCDSS v. M.R.C.L. The South Carolina Supreme Court eventually overruled a portion of Floydand reversed M.R.C.L. One hopes the Moelleropinion eventually suffers the same fate.